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Friday Roundup

Roundup

Affirmed, very distressing, scrutiny updates, and for the reading stack. It’s all here in the Friday roundup.

Affirmed

As highlighted in this previous post, in July 2017 Dmitrij Harder was sentenced to 60 months (5 years) in federal prison and also ordered to forfeit $1.9 million after pleading guilty to two counts of violating the FCPA for “bribing an official at the European Bank for Reconstruction and Development (EBRD).”

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FCPA Flash – A Conversation With Judge Shira Scheindlin, The FCPA’s Most Prominent Judge

Podcast Logo

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Judge Shira Scheindlin. Judge Scheindlin served as a federal trial court judge in the Southern District of New York for 20+ years until May 2016.  Most federal court judges go their entire career without an FCPA case being placed on their docket. However, Judge Scheindlin is an exception and during her time on the bench she refereed more disputed FCPA issues than any other federal court judge in FCPA history. During the podcast, Judge Scheindlin describes how she was generally on a judicial island when interpreting the FCPA and the difficulty of interpreting the “ambiguous” FCPA. The podcast is a must listen for anyone interested in FCPA jurisprudence.

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Judge Finds The Term Instrumentality “Unclear” And Narrowly Construes “Foreign Official” Element Contrary To The DOJ’s Position

Judicial Decision

There is little substantive Foreign Corrupt Practices Act case law, even fewer judicial decisions of precedent. Nevertheless, in the aftermath of FCPA enforcement actions or merely FCPA scrutiny, plaintiffs counsel (no doubt representing shareholders on a contingent fee basis) frequently file securities fraud class actions hoping some get past the motion to dismiss stage.

In deciding motions to dismiss, federal trial court judges occasionally directly comment upon FCPA issues and this post highlights a recent example in a matter involving Rio Tinto. As discussed below, a federal court judge found the term “instrumentality” in the FCPA’s “foreign official” definition “unclear” and otherwise narrowly construed the term in a way contrary to the DOJ’s current position.

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U.S. v. Hoskins And The Big Picture

bigpicture

This prior post highlighted the Second Circuit’s recent decision in U.S. v. Hoskins in which the court rejected the DOJ’s expansive jurisdictional theory of prosecution against Lawrence Hoskins, a U.K. national.

This post continues the analysis by highlighting various “big picture” issues.

Legislative History Matters

In large part, the Second Circuit’s opinion was based on the FCPA’s legislative history demonstrating once again that legislative history matters.

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Second Circuit Rejects DOJ’s Expansive Jurisdictional Theory Of Prosecution In U.S. v. Hoskins

Judicial Decision

Appellate decisions construing the Foreign Corrupt Practices Act are extremely rare. Thus, many in the FCPA community have been awaiting the Second Circuit’s long-awaited (oral argument was held in March 2017 – see here) decision in U.S. v. Hoskins.

In this decision, the court rejected the DOJ’s expansive jurisdictional theory of prosecution against Lawrence Hoskins, a U.K. national. In many respects, the Second Circuit’s decision was based on the FCPA’s legislative history – demonstrating once again that the legislative history matters (see here for a prior post).

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